The Colorado Supreme Court will hear oral arguments for the Martinez v. Colorado Oil and Gas Conservation Commission (COGCC) case on Tuesday, a case whose outcome may have far-ranging ramifications for how the state’s oil and gas permitting process is conducted moving forward.
The case, known as the Martinez case, is being brought by a group of teenagers—including the lawsuit’s namesake, Xiuhtezcatl Martinez. Environmental legal group, Our Children’s Trust (OCT) is sponsoring the plaintiffs and providing litigation assistance.
The impetus for the lawsuit stems from a proposal Martinez put forward to the COGCC in 2013, which asked for the regulatory body not to issue new permits “unless the best available science demonstrates, and an independent third party organization confirms, that drilling can occur in a manner that does not cumulatively, with other actions, impair Colorado’s atmosphere, water, wildlife, and land resources, does not adversely impact human health and does not contribute to climate change.”
COGCC denied the request in 2014 on the grounds that the rule is outside the scope of its authority. This prompted Martinez et al to file suit, appealing the decision to the Denver District Court.
The District Court sided with the COGCC, but Court of Appeals issued a 2-1 decision in favor of the plaintiffs in March 2017.
When issuing permits, COGCC uses a balancing test to make decisions weighing economic and industry interests against environmental concerns. But the appeals court sided with the plaintiffs, declaring that the later should be the basis for all decision making.
“We therefore conclude that the Commission erred in interpreting section 34-60-102(1)(a)(I) as requiring a balance between development and public health, safety, and welfare. The plain meaning of the statutory language indicates that fostering balanced, nonwasteful development is in the public interest when that development is completed subject to the protection of public health, safety, and welfare,” the Court said.
In May 2017, Attorney General Cynthia Coffman announced that her office would be appealing the decision on behalf of COGCC and asked that the Colorado Supreme Court hear the case.
“The Colorado Oil & Gas Conservation Commission unanimously voted to defend its legal position in court, and I agree that the Colorado Supreme Court should review the case due to its legal significance,” Coffman said in a statement at the time. “This appeal is not intended to be a statement on complex energy policy issues. Rather it is a legal challenge to a court decision that stands to have a profound effect on regulation and administrative decision making by government entities.”
The appeals court ruling does not compel COGCC to adopt Martinez’s proposed rules for permitting, but calls into question whether the agency misinterpreted its mandate and illegally rejected the rule. The Colorado Supreme Court agreed to hear the case earlier this year and said it will determine “[w]hether the court of appeals erred in determining that the Colorado Oil and Gas Commission misinterpreted section 34-60-102(1)(a)(I), C.R.S. as requiring a balance between oil and gas development and public health, safety, and welfare.”
Though the case wouldn’t immediately implement Martinez’s original proposal, it would establish a new understanding of COGCC’s mandate which could make obtaining a permit for oil and gas operations far more difficult.
“The battle over oil and gas on the Front Range is getting bigger and bigger. And if this Colorado Court of Appeals decision is upheld, it will be hard to have any drilling inside Front Range residential areas. That would be a big change,” said Earthworks energy program director Bruce Baizel, according to the Denver Post.
During the last legislative session, Colorado State Representative Joe Salazar introduced a bill that would have made the appeals court ruling law.
“The Colorado court of appeals, in Martinez v. Colo. Oil & Gas Conservation Comm’n , 2017 COA 37, has construed this language to mean that oil and gas development is not balanced with the protection of public health, safety, and welfare, including protection of the environment and wildlife resources. Rather, that development must occur in a manner consistent with such protection. The bill codifies the result reached in Martinez.” read the text of the bill, HB 1071.
At the time, Democratic Gubernatorial Candidate Jared Polis endorsed the appeals court ruling, and said he would sign such a bill.
“[O]f course I support the Martinez decision that says health and safety should be the primary concern for the COGCC [Colorado Oil and Gas Conservation Commission] in siting oil and gas. They need, and they are, operationalizing the Martinez decision. If the legislature wants to put that in statute, I would certainly sign that as well,” Polis said at a January rally.
HB 1071 passed through the House, but did not make it out of committee in the Senate.
The Colorado case is one of several that OCT is pursuing throughout courts in the U.S. The group claims to have legal proceedings active in all 50 states. A federal trial, Juliana v. United States, will begin on October 29 in the Ninth Circuit.
